Citation Nr: 0501741
Decision Date: 01/25/05 Archive Date: 02/07/05
DOCKET NO. 03-18 403A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Reno,
Nevada
THE ISSUE
Entitlement to service connection for hypertension.
ATTORNEY FOR THE BOARD
A. P. Simpson, Counsel
INTRODUCTION
The veteran served on active duty from April 1980 to November
1994.
This case comes before the Board of Veterans' Appeals (Board)
on appeal from a November 2001 rating decision of the Reno,
Nevada, Department of Veterans Affairs (VA) Regional Office
(RO). The RO denied service connection for hypertension.
FINDING OF FACT
Competent evidence of a nexus between the post service
diagnosis of hypertension and service, to include
manifestations of such to a compensable degree within one
year following the veteran's discharge from service, is not
of record.
CONCLUSION OF LAW
Hypertension was not incurred in or aggravated by service nor
may it be presumed to have been incurred in service.
38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West
2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2004).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Veterans Claims Assistance Act of 2000
Initially, the Board notes that on November 9, 2000, the
President signed into law the Veterans Claims Assistance Act
of 2000 (VCAA). Veterans Claims Assistance Act of 2000, Pub.
L. No. 106-475, 114 Stat. 2096 (2000), now codified at
38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). This
legislation provides, among other things, for notice and
assistance to claimants under certain circumstances. VA has
issued final rules to amend adjudication regulations to
implement the provisions of VCAA. See 66 Fed. Reg. 45,620
(Aug. 29, 2001) (codified as amended at 38 C.F.R §§ 3.102,
3.156(a), 3.159 and 3.326(a) (2004)). The intended effect of
the new regulations is to establish clear guidelines
consistent with the intent of Congress regarding the timing
and the scope of assistance VA will provide to a claimant who
files a substantially complete application for VA benefits,
or who attempts to reopen a previously-denied claim.
The record shows that the claimant has been notified of the
applicable laws and regulations which set forth the criteria
for entitlement to service connection for hypertension. The
discussions in the November 2001 rating decision, the May
2003 statement of the case, the July 2004 supplemental
statement of the case, and correspondence from the RO have
informed the claimant of the information and evidence
necessary to warrant entitlement to the benefit sought.
Moreover, an August 2004 letter effectively furnished notice
to the veteran of the types of evidence necessary to
substantiate the claim for service connection, as well as the
types of evidence VA would assist her in obtaining and what
she should do. See Quartuccio v. Principi, 16 Vet. App. 183
(2002). The RO advised the veteran to submit any additional
information or evidence in the case.
Although the Board recognizes that the VCAA notice to the
veteran was subsequent to the rating decision which gave rise
to this appeal, the Board finds no prejudice to the veteran.
The veteran was adequately furnished with the type of notice
required by the VCAA and has had an opportunity to identify
evidence and submit evidence in connection with her claim for
service connection. Any error resulting from VCAA notice
subsequent to the initial rating decision was harmless error,
as it pertains to this issue. The RO's subsequent actions
and notice to the veteran effectively cured any VCAA notice
defect. See Pelegrini v. Principi, 18 Vet. App. 112 (2004).
The veteran was informed of the evidence necessary to
substantiate her claim. The provisions of VCAA have been
substantially complied with and no useful purpose would be
served by delaying appellate review of this claim for further
notice of VCAA.
The Board also finds that all necessary assistance has been
furnished to the veteran. The evidence of record consists of
service medical records, VA and private medical records, and
statements from the veteran. The veteran has been provided
with two VA examinations in connection with her claim, to
include a medical opinion relating to the issue on appeal.
For the reasons stated above, the Board finds that the
requirements of the VCAA have been met.
II. Decision
The veteran contends that service connection for hypertension
is warranted. She states that although she was diagnosed
with hypertension in January 1996, and that because she had a
full-blown diagnosis at that time, it would indicate that
hypertension had manifested within one year following her
discharge from service. She also argues that she was not
formally discharged from service until June 1996, which would
place her diagnosis of hypertension "in service."
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. §§ 1110, 1131 (West 2002). Service connection
for hypertension may be granted if manifest to a compensable
degree within one year of separation from service.
38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R.
§§ 3.307, 3.309(a) (2004). Service connection may be granted
for any disease diagnosed after service when all the evidence
establishes that the disease was incurred in service.
38 C.F.R. § 3.303(d) (2004).
The chronicity provision of 38 C.F.R. § 3.303(b) is
applicable where the evidence, regardless of its date, shows
that the veteran had a chronic condition in service or during
an applicable presumption period and still has such
condition. Such evidence must be medical unless it relates
to a condition as to which, under the United States Court of
Appeals for Veterans Claims's case law, lay observation is
competent. Savage v. Gober, 10 Vet. App. 488, 498 (1997).
In addition, if a condition noted during service is not shown
to be chronic, then generally a showing of continuity of
symptomatology after service is required for service
connection. 38 C.F.R. § 3.303(b) (2004).
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the veteran prevailing in either
event, or whether a preponderance of the evidence is against
a claim, in which case, the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
The Board has carefully reviewed the evidence of record and
finds that the preponderance of the evidence is against the
grant of service connection for hypertension. The service
medical records show that the veteran had some elevated blood
pressure readings during service. There was, however, no
diagnosis of hypertension, and the veteran's elevated blood
pressure readings were sporadic in that the elevated blood
pressure readings did not remain chronically elevated. An
October 1994 service medical record shows a blood pressure
reading of 127/76. An October 1994 report of medical
examination shows a blood pressure reading of 132/72. A
January 1995 VA examination report shows a blood pressure
reading of 130/80. A March 1995 VA outpatient treatment
report shows a blood pressure reading of 142/89. A May 1995
VA examination report shows blood pressure readings of 140/89
and 140/85. A January 1996 private medical record shows a
finding that the veteran's blood pressure was "a bit
elevated." The blood pressure reading was not reported on
the treatment record, nor was a diagnosis of hypertension
entered. An August 1996 private medical record shows a blood
pressure reading of 150/105 with a diagnosis of hypertension.
This is the first time that hypertension was objectively
diagnosed by a medical professional. Therefore, the first
diagnosis of hypertension was well over a year following the
veteran's discharge from service.
Additionally, the blood pressure readings shown within the
first year of the veteran's discharge from service do not
show manifestations of hypertension to a compensable degree.
See 38 C.F.R. § 4.104, Diagnostic Code 7101 (2004). Under
that Diagnostic Code, a compensable evaluation for
hypertension contemplates diastolic pressures predominantly
100 or more or systolic pressures predominantly 160 or more.
The veteran's diastolic blood pressure readings during that
first year following her discharge from service are 89 and
below and the systolic blood pressure readings are 142 and
below. See id. More importantly, a VA examiner reviewed the
veteran's claims file and determined that hypertension was
not shown prior to January 1996. Therefore, there is no
objective and/or competent evidence of hypertension either in
service or manifestations of such within one year following
the veteran's discharge from service. Again, the Board is
aware that the veteran had some elevated blood pressure
readings during that one-year period following her discharge
from service, but none of them meet the criteria for a
compensable evaluation under Diagnostic Code 7101. See id;
see also 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307,
3.309(a).
Although the veteran has attributed her hypertension to
service, she has not been shown to have the requisite
knowledge of medical principles that would permit her to
render an opinion regarding matters involving medical
diagnoses or medical etiology. See Espiritu v. Derwinski, 2
Vet. App. 492, 494 (1992). There is no competent evidence of
record that the veteran had hypertension in service or
manifestations of hypertension to a compensable degree within
one year following her discharge from service.
The veteran had asserted that she was not formally discharged
from service until June 1996, which would place the diagnosis
of hypertension within service. She has submitted an
"Honorable Discharge" document showing that she was
honorably discharged from the United States Air Force in June
1996. Even accepting such documentation as evidence that she
was discharged from the Air Force in June 1996, it does not
mean that the veteran was on "active duty" until June 1996.
Rather, the veteran's DD Form 214 shows she was discharged
from active duty in November 1994 and placed on temporary
disability. Additionally, an October 1994 service record
shows that the veteran was "relieved from active duty"
effective 21 November 1994. Therefore, her period of
"active duty" stopped in November 1994. See 38 U.S.C.A.
§ 1110 (service connection is warranted for a disability due
to disease or injury contracted in line of duty in the active
military, naval, or air service). The Board finds that the
veteran's period of active duty terminated as of 21 November
1994, and hypertension was not shown to a compensable degree
within the one-year period following her discharge from
active service.
In sum, the veteran's claim of service connection for
hypertension cannot be granted because she has not brought
forth competent evidence of a nexus between the current
diagnosis of hypertension and service, to include
manifestations of such to a compensable degree within one
year following her discharge from active duty. As stated
above, there is competent evidence from a medical
professional that hypertension was not shown until after the
one-year period following her discharge from active duty.
Accordingly, for the reasons stated above, the Board finds
that the preponderance of the evidence is against the claim
for service connection for hypertension, and there is no
doubt to be resolved. See Gilbert, 1 Vet. App. at 55.
ORDER
Service connection for hypertension is denied.
___________________________________________
JAMES L. MARCH
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs